Kovalevich v. State, 932 N.W.2d 354

In 2013 a jury convicted Sean Kovalevich of two counts of gross sexual imposition and one count of corruption of a minor; sentence: 30 years imprisonment plus 10 years supervised probation. Conviction affirmed on direct appeal.
Kovalevich filed multiple post-conviction relief (PCR) applications in 2015 and 2017, both denied and affirmed on appeal.
In Sept. 2018 he filed an N.D.R.Civ.P. 60(b) motion alleging prosecutorial misconduct and false testimony by a BCI agent; in Nov. 2018 he filed another PCR application asserting newly discovered evidence (hotel receipts from Feb. and Aug. 2012), a false affidavit supporting a search warrant (based on BIA reports), and lack of BCI jurisdiction.
The district court treated the Rule 60(b) filing as a PCR application and summarily dismissed both the Rule 60(b)/PCR motion and the Nov. 2018 PCR, finding claims were relitigation, the receipts were not newly discovered, and the new evidence would not likely result in acquittal.
Kovalevich also requested court-appointed counsel for the PCR; the court denied appointment because it summarily dismissed the application.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Rule 60(b) motion may avoid PCR procedures	Kovalevich: Rule 60(b)(3) fraud/misconduct claim should be considered on its own, not as PCR	State: The motion is an attempt to relitigate prior PCR claims and must be treated as a PCR application	Court: Rule 60(b) motion is treated as a PCR application; dismissal affirmed (relitigation barred)
Whether Feb. and Aug. 2012 Canad Inn receipts constitute newly discovered evidence	Kovalevich: Receipts impeach victim and show innocence	State: Receipts were accessible before trial and represent relitigation; insufficient to likely produce acquittal	Court: Receipts not newly discovered (defendant knew and could obtain them); would not likely result in acquittal; claim dismissed
Whether BIA reports show affidavit contained knowingly false statements (search-warrant affidavit)	Kovalevich: BIA reports contradict affidavit, showing agent knowingly included false/misleading statements	State: Any differences do not prove knowing falsity; information in affidavit came from victim interview and was available	Court: Discrepancies are immaterial; no evidence agent knowingly lied; claim dismissed
Whether court should appoint counsel for PCR proceedings	Kovalevich: Requested appointed counsel	State: Not necessary if application dismissed	Court: Denial of counsel was not an abuse of discretion given summary dismissal

State v. Kovalevich, 858 N.W.2d 625 (N.D. 2015) (direct appeal affirming conviction)
Kovalevich v. State, 891 N.W.2d 778 (N.D. 2017) (prior PCR appeal)
Kovalevich v. State, 915 N.W.2d 644 (N.D. 2018) (prior PCR appeal addressing similar receipt evidence)
Wacht v. State, 864 N.W.2d 740 (N.D. 2015) (summary-dismissal standard for PCR; civil rules apply)
State v. Atkins, 928 N.W.2d 438 (N.D. 2019) (PCR is exclusive remedy; procedural form cannot avoid PCR scheme)
State v. Gress, 807 N.W.2d 567 (N.D. 2011) (motions framed under other rules may be treated as PCR applications)
Syvertson v. State, 699 N.W.2d 855 (N.D. 2005) (elements for new trial/newly discovered evidence standard)
Dvorak v. Dvorak, 635 N.W.2d 135 (N.D. 2001) (Rule 60 relief denied where movant seeks to relitigate issues)
Murchison v. State, 578 N.W.2d 514 (N.D. 1998) (discretion to appoint counsel in PCR proceedings)